What's Next for I-502--Federal Crackdown, Court Battle or Congressional Action?

On the eve of election day, I-502 campaign director Alison Holcomb said she was feeling "pretty comfortable" with the possible reaction of feds should the marijuana legalization initiative win--at least if Barack Obama also came in victorious.

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Despite the urging of former DEA administrators, Obama's attorney general, Eric Holder, had refrained from issuing a strong statement condemning 502 and similar initiatives in Colorado and Oregon.

This was a very different stance than the one Holder took two years ago, when California put pot legalization on the ballot, Holcomb noted. Then, Holder thundered that there would be "vigorous enforcement" from the feds. Prop. 19 tanked.

Yet, Kevin Sabet, a former senior adviser to federal drug czar (and former Seattle police chief) Gil Kerlikowske, essentially thinks Holcomb is dreaming. He points to a slew of recent threatening letters from the DEA sent to medical marijuana dispensaries, here and across the country, warning the pot "access points" to shut down.

"I can't imagine the feds would go that hard on medical marijuana and give legalization a pass," says Sabet, now a professor at the University of Florida's College of Medicine. "I don't expect a bomb the first day," he adds. Rather, he says, the feds are likely to move once they see how Washington state is implementing the exhaustive details of 502 (see text), which call for the state Liquor Control Board, in consultation with the Departments of Agriculture and Health, to set up a licensing and regulatory scheme for growing, processing and selling pot. That scheme doesn't have to be in effect until December 1, 2013.

Indeed, no bomb immediately exploded after 502, and Colorado's Amendment 64, passed. U.S. Attorney for Western Washington Jenny Durkan issued a perfunctory statement that reminded everybody that marijuana is still a "Schedule 1 controlled substance" under federal law, but said her department was "reviewing the ballot initiative" and had "no additional statement."

Sabet, however, looks to another missive from Durkan, the one she sent the governor after the legislature in 2011 passed a bill legalizing medical marijuana dispensaries. Durkan warned of "civil fines" and "criminal prosecution" against anyone involved in the drug trade, include state employees charged by the bill with regulating dispensaries.Governor Chris Gregoire used her red pen to excise most of the legislation, saying she couldn't put state workers at risk.

Sabet consequentially suggests that not only the feds, but the Liquor Control Board, might attempt to block 502 with a lawsuit. For the moment, though, the board is saying that it intends to carry out the initiative pending discussion with the Department of Justice "for clarification."

But one way or another, even 502 sponsor Pete Holmes says he thinks that "we will likely end up in court," as the city attorney told SW on election night. U.S. District Court judges will no doubt rule on whether states can buck the legal dictate that makes federal law supreme, a concept known as "preemption." Some analysts have speculated that the legal battle will eventually land at the U.S. Supreme Court.

Holmes suggests one more possibility: Congress might beat the courts to the fray. Last year, U.S. Reps. Barney Frank and Ron Paul jointly introduced a bill that would allow states to legalize marijuana without federal interference. The bill hasn't gone anywhere yet, but the team-up of liberal Frank and libertarian Paul suggested surprising, wide-ranging support behind legalization.

Given the victories of 502 and Amendment 64, it's clear that such support has if anything grown stronger, and some Congress members might make a bigger push to empower what is now the voters' will.